A lawyer earns her cause against her former cabinet

A lawyer dismissed without just and sufficient cause will be compensated by her former employer. Furthermore, Here is why …

In an extensive decision rendered on August 1. Furthermore, the judge Véronique Girard of the Administrative Labor Tribunal (TAT) ruled that an employee was indeed to me within the meaning of the law on labor standards (LNT) and that her dismissal by her former employer, Jean-Charles Phillipsfrom Gatinois Mantha Phillips, was linked to his absence for illness.

Me Cindy Dumais was represented by me Marlène loves usfrom Laroche Avocats CNESST. Similarly, Me Jean-Charles Phillips represented himself.

The plaintiff filed two lawyer earns her cause against complaints against Mantha Phillips on March 1, 2023, contesting the end of her job occurred on January 19 previous. In addition, She allegedly allegedly was dismissed without just and sufficient cause, because of an absence for illness that started on October 27, 2022.

Employee or autonomous worker?

At the heart of the dispute was the fundamental question of Me Dumais’ employment status.

The complainant argued that she was a full -fledged employee of Mantha Phillips. Nevertheless, despite remuneration partially paid in the form of business income. Therefore, It emphasized the link of legal subordination which linked it to Me Jean-Charles Phillips, the administrator of the firm. Similarly,

Me Dumais argued that almost all of its customers came from the firm. For example, that its work was done under the Mantha Phillips banner and that it used the firm’s tools and infrastructures. In addition,

She also underlined the control exercised by Me Phillips on lawyer earns her cause against her files. Moreover, her hours of presence at the office and even her vacation. Consequently, He went so far as to ask him to work at home during a previous sick leave in 2021, she illustrated.

Me Jean-Charles Phillips challenged the status of employee of Me Dumais. For example, arguing that she was an autonomous worker operating within a “spending company”, where each lawyer manages her own clientele and contributes to the common expenses.

He argued that salary payments were only advances in his business income.

Me Phillips pleaded in the alternative that if I dudmed should be judged employee. the end of employment was justified by serious reasons and unrelated to her absence for illness, in particular her insufficient performance, her negligence in the monitoring of files and ethical faults linked to the planning of his absence.

The decision of the court on the status of employee

The state has carried lawyer earns her cause against out an in -depth analysis to determine the true nature of the relationship between Me Dumais. Mantha Phillips, as well as the legality of his dismissal.

On the status of employee. the court recalled that the LNT largely defines the concept of employee to include the “dependent entrepreneurs” who remain legally subordinated to an employer.

The analysis focused on several criteria:

• Control of the execution of the work: despite the professional autonomy inherent in the profession of lawyer. Additionally, the court noted that Phillips exercised a significant control, managing the administration, and monitoring the work in progress and the billable hours. The fact that customers continued to contact him directly for file updates. that he relayed this information to Me Dumais demonstrated, according to the TAT a persistent control. In addition. almost all customers stayed with Me Phillips after the departure of Me Dumais, strengthening the idea of strong integration.
• The property of lawyer earns her cause against work tools: all the essential tools for his work – offices. computers, servers, archives – belonged to Mantha Phillips. Me Dumais only recovered his personal books when he left.
• The possibility of profits. losses: although the remuneration of Me Dumais was linked to its return, it did not ensure the financial risks of the firm. It was Mantha Phillips who absorbed the losses due to the decline in her income. The cabinet even imposed performance objectives for him.
• Integration into the company: The court judged that Mantha Phillips was not a simple “spending company” for me. All of his professional acts were posed on behalf of the firm. the invoices were issued on behalf of the firm and the fees won were paid to the Mantha Phillips fidel account.
• Personal work execution: Dumair personally performed his work and could not delegate him to an external person in the office.

For the state. therefore, the lawyer earns her cause against global analysis of the facts was clearly leaned in favor of a bond of legal subordination, making Me Cindy Dumais an employee in the sense of the LNT.

The cause of dismissal

The court applied article 122 of the LNT. which prohibits the dismissal of an employee due to the exercise of a law provided by law.

The concomitance between the absence of Me Dumais. who started on October 27, 2022, and his dismissal, which occurred on January 19, 2023, just before his return scheduled for January 30, 2023, created, according to the TAT, a presumption of illegal dismissal.

It was then incumbent on Mantha Phillips to prove. by preponderant evidence, that dismissal was due to a serious cause completely foreign to the absence for illness.

The court noted that the relationship between the parties was excellent until 2022. Although Me Phillips noted problems of performance. follow -up of files during the year lawyer earns her cause against 2022, he never discussed it with me before the advice of dismissal. On the contrary. he even offered him a gift for “excellent work” in June 2022, when he was already aware of the alleged gaps, underlines the state.

The “poison drop”

Judge Véronique Girard recalled the principle of “poison drop”: if an illicit reason, like the absence for illness, plays the slightest role in the decision to dismiss, the measure is vitiated.

According to her. Mantha Phillips failed to demonstrate that the decision to dismiss was entirely foreign to the absence of Me Dumais. The moment of dismissal, just before his return from convalescence, was deemed lawyer earns her cause against very revealing.

The state therefore concluded that I dowed was dismissed without just and sufficient cause. The reintegration has not been ordered, the parties having heard on its impossibility.

Me Jean-Charles Phillips will have to pay to Me Cindy Dumais. as a loss of salary, the equivalent of the salary and the other advantages of which his dismissal deprived him. The court reserved its jurisdiction to determine the other repair measures.

Droit-inc tried to join the parties to collect their comments. but had not had a return when putting this article online.